Hawker v. New York

In 1878, the plaintiff in error (defendant below) was tried and convicted in the court of sessions of Kings county, N. Y., of the crime of abortion, and sentenced to imprisonment in the penitentiary for the term of 10 years. In 1893 the legislature of the state of New York passed an act entitled the 'Public Health Law' (Laws 1893, c. 661), which, as amended by the Laws of 1895 (chapter 398), provides, among other things, as follows:

'See. 153. Any person who, * * * after conviction of a felony, shall attempt to practice medicine, or shall so practice, * * * shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not more than two hundred and fifty dollars, or imprisonment for six months for the first offense, and on conviction of any subsequent offense, by a fine of not more than five hundred dollars, or imprisonment for not less than one year, or by both fine and imprisonment.'

Under this statute, defendant was indicted in April, 1896, in the court of general sessions of the peace for the city and county of New York. The indictment alleged the conviction in 1878, and charged that, having been so convicted of the crime and felony of abortion, defendant did, on the 22d day of February, 1896, in the city of New York, unlawfully practice medicine, 'by then and there unlawfully examining, treating, and prescribing for one Dora Henig.' To this indictment he demurred. The demurrer was overruled. and, upon a plea of not guilty, he was tried, convicted, and sentended to pay a fine of $250. That conviction having been sustained by the court of appeals of the state (152 N. Y. 234, 46 N. E. 607), and a remittitur sent down, a final judgment was entered in the court of general sessions, whereupon he sued out this writ of error.

Hugh O. Pentecost, for plaintiff in error.

Asa Bird Gardner, John D. Lindsay, and R. C. Taylor, for the People of New York.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.